BHAIKHA UMRAVKHA PATHAN Vs. ISMAIL GAFURBHAI VORA
LAWS(GJH)-1988-8-22
HIGH COURT OF GUJARAT
Decided on August 31,1988

BHAIKHA UMRAVKHA PATHAN Appellant
VERSUS
ISMAIL GAFURBHAI VORA Respondents


Referred Judgements :-

RAJ MADHAVSANG GULABSANG VS. PARMAR RANCHHODBHAI GALABSANG [REFERRED TO]


JUDGEMENT

R.J.SHAH - (1.)This is a petition filed under Art. 227 of the Constitution of India wherein the petitioner has prayed for an appropriate writ for quashing and setting aside the judgment and order dated 24-4-1979 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN. B. A. 644 of 1978 as also for quashing the orders passed by the authorities below. The further prayer made in the petition is that the matter be remanded to the Mamlatdar & A. L. T. Mehmadabad for disposal in accordance with the provisions of Sec. 32(1B) of the Bombay Tenancy and Agricultural Lands Act 1948
(2.)The brief facts of the case are that the petitioner has claimed that he was in possession of the land in question as a tenant on 15 and that thereafter he submitted an application under Sec. 70 read with Sec. 32(1B) of the Act for claiming possession of the land. That application was dated 15-7-1976. The petitioner has claimed that in the said application his case was that he was the tenant of the land in question that he had submitted an application on 5-5-1973 to the Mamlatdar that he had submitted a fresh application on 24 through his Advocate and that as there was no reply from the Mamlatdar the petitioner had submitted a fresh application on 15 The said application dated 15-7-1976 was rejected by the Mamlatdar on the ground that since the possession was not with the landlord the application of the petitioner cannot be allowed. The petitioner had pursued the matter further before the Deputy Collector by way of an appeal being Tenancy Appeal No. 148 of 1977. The learned Deputy Collector came to the conclusion that the said application of the petitioner was barred by time. On merits also he had reached the conclusion against the petitioner. The petitioner had pursued the matter further before the Gujarat Revenue Tribunal and as per the order in question impugned in this petition the Tribunal came to the conclusion that the said application of the petitioner was time barred. The Tribunal also reached the conclusion that on merits the case was in favour of the petitioner. The Tribunal however rejected the revision application before it as barred by time. Hence the present petition.
(3.)So far as the aspect of limitation is concerned it is necessary to consider Sec. 32(1B) of the said Act. This section provides that an application pursuant to the said section could be either on the application filed by the tenant or suo motu by the Mamlatdar concerned. The facts of the present case clearly reveal that the application filed by the petitioner before the Mamlatdar was clearly beyond time. The question therefore is whether the said application could be considered as one where the Mamlatdar could invoke his jurisdiction under the said Sec. 32(1B). It is pertinent to note that so far as exercise of powers by the Mamlatdar is concerned there is no such time limit prescribed. It is therefore open to the Mamlatdar to start a suo motu enquiry under Sec. 32(1B). This aspect of the matter is no longer res integra. In the case of Rasulmiya Rehmanmiya v. Patel Lalbhai Shankerbhai [1983 (1)] XXIV (1) GLR 714 it has been held by this Court as under (at page No. 720 of GLR):
"If a competent officer under the Bombay Tenancy Act decides the matter on merit even though the said decision may not be supportable by a given provision of law it can still be sustained under any other provision of the Tenancy Act. The Mamlatdar has been advisably entrusted with suo motu power by the Legislature to entertain any appropriate case under Sec. 32(1B) even if the aggrieved tenant might not have applied within time for redress of his grievance. Section 32(1B) is a beneficial provision enacted with a view to protect the rights of illiterate and ignorant tenants who might have been duped by their crafty landlords into giving up possession of their lands contrary to the provisions of the Tenancy Act. Such tenants might skip the period on one years limitation as provided by the statutory Rules. (Rule 15(A) of the Bombay Tenancy and Agricultural Lands Rules 1956 However they are given a locus poenitentiae in the form of invocation of suo motu powers of the Mamlatdar for getting justice. Their time barred applications seek to do nothing else but to inform the Mamlatdar about the injustice done to them. Once convinced the justness of the grievance put forward by such a tenant if the Mamlatdar proceeds to deal with the case under Sec 32(1B) on merits only inference that can follow from such a course adopted by the Mamlatdar is that be has thought it fit to invoke his suo motu powers which are not subject to any period of limitation".
The present case is clearly governed by the ratio of the said decision. As stated above the Tribunal has decided the said revision application before it on 24-4-1979 and the decision cited above was not then available to the Tribunal. In view of the said decision learned Advocate Mr. Supehia for the respondent No. 3 one of the contesting respondents has fairly submitted that the position is set atleast by the said ratio on the aspect of limitation. The judgment and order of the Tribunal therefore on the aspect of limitation cannot by sustained.
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